Code of Civil Procedure (CCP) Section 873.040 - Consent of All Parties

Code of Civil Procedure section 873.040 requires the court to appoint a referee when all parties have agreed to appoint that referee. This statute is important because it allows the parties the chance to appoint a referee that they choose for themselves.

Code of Civil Procedure section 873.040 states:

(a) The court shall appoint as referee under this title any person or persons to whose appointment all parties have consented.

(b) In the case of a minor party or a party for whom a conservator of the estate has been appointed, the guardian or conservator of the estate of the party may so consent.

(Amended by Stats. 1976, c. 73, p. 110, § 6.)

“Shawn” and “Julie” are an unmarried couple. They decide to buy a home as joint tenants and move in together.

Unfortunately, Shawn and Julie’s relationship doesn’t work out, and they break up. They cannot agree on what to do with the house. Shawn wants to sell the house and move on with his life, so he sues for partition by sale.

Eventually, the court orders that the property be sold, and the sale proceeds distributed. Shawn and Julie negotiate and agree on appointing a well-known realtor to be the partition referee. Since the parties consented to the realtor’s appointment as referee, the court appoints the realtor as the partition referee to oversee the sale, pursuant to CCP § 873.040.

If Shawn and Julie could not agree on who to appoint as referee, then the court would have discretion in appointing the referee. While Shawn and Julie could potentially suggest referees, it would ultimately be the court’s decision.

1976 Addition

Section 873.040 continues without substantive change a portion of former Section 763. See Section 872.010 (defining guardian). It should be noted that the parties may nominate persons to serve as referee but, absent agreement among the parties, the choice of a referee is in the discretion of the court.

1979 Amendment

Section 873.040 is amended to substitute a reference to a party for whom a conservator of the estate has been appointed for the former reference to an incompetent. When a person for whom a conservator has been appointed is a party to litigation, he or she must appear by the conservator or by a guardian ad litem. Code Civ.Proc. § 372. When the conservator has made the appearance, the conservator should be the one to take any procedural steps in the litigation, including the giving of consent to the appointment of a referee under Section 873.040.

As is the case with most of the partition statutes, section 873.040 does not include a an “official” Assembly Committee Comment from the California Legislature. This is usual, however, because the Legislature essentially endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.

In fact, the introduction to Assembly Bill 1671 (the bill that contained the new partition laws) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” This demonstrates that the intent of the Legislature was substantially in line with that of the Revision Commission.

That being said, this statute was actually mentioned by the Legislative Digest to the Assembly Judiciary Committee. The digest summarized the law as follows: “Under existing law the court must appoint three referees to divide and sell the property in a partition case, unless the parties consent to one referee. Under this bill, the court must appoint one referee unless the parties consent to three.”

As such, Section 873.040 superseded the three-referee provision of former section 763. Section 763 was a confusing provision that outlined the procedure for partitions. In relevant part, section 763 stated:

“. . .[U]pon the requisite proofs being made it must… appoint three referees therefor, and must designate the portion to remain undivided for the owners whose interests remain unknown, or are not ascertained; or the court may with the consent of the parties appoint one referee instead of three, and he, when appointed, has all the powers and may perform all the duties required of three referees; and the court must appoint as referee any person or persons to whose appointment all the parties have consented. . .”

Commenting on section 763, the Revision Commission wrote:

“The portion of former Section 763 providing for appointment of three referees as a matter of course is superseded by Section 873.010, providing for appointment of one referee as a matter of course. The portion that provided for appointment of one referee with the consent of the parties is superseded by Section 873.030, providing for appointment of three referees with the consent of the parties.”

As to how this statute plays out in practice, the Revision Commission comment makes clear that parties can stipulate to a referee, or one will be appointed by the court. Unless that stipulation is mutual, the court has all the discretion with appointment. In fact, the court can even choose a referee that has not been recommended by the parties.

Thus, when the court orders an interlocutory judgment, litigants should utilize this opportunity to convene with the opposing party and attempt to find common ground. Otherwise, they may wind up with a referee not of their choosing.